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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ARBUTUS BIOPHARMA CORPORATION
`and GENEVANT SCIENCES GMBH,
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`Plaintiffs,
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`v.
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`MODERNA, INC. and MODERNATX, INC.,
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`Defendants.
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`CIVIL ACTION
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`NO. 22-252
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`ORDER
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`AND NOW, this 8th day of July, 2024, upon consideration of Defendant’s letter request for
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`clarification (D.I. 366) and there being no response, I find the following:
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`1. On June 20, 2024, I issued an Order ruling on the parties’ various discovery disputes.
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`2. In one of those disputes, I considered whether Defendant must produce non-lobbying material
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`including Defendant’s communications with all federal agencies regarding this action, the
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`Government’s Statement of Interest, appropriations for the COVID-19 vaccine, and application
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`of § 1498 to the Moderna-U.S. contracts at issue. Defendant claimed that it had a common
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`interest privilege with respect to these materials.
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`3. In my June 20, 2024 Order, I found that “Defendant had not met its burden of establishing this
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`privilege in its communications with the U.S. Government. Indeed, it is hard to comprehend
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`how Defendant and the Government share a common legal defense since, under 28 U.S.C. §
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`1498, either the Government or Defendant—not both—will be responsible for any infringement
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`damages.” (June 20, 2024 Order ¶ 33.)
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`4. On June 27, 2024, Defendant filed a letter seeking clarification as to whether my Order regarding
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`the common interest privilege applied only to communications discussing the application of
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`Case 1:22-cv-00252-MSG Document 378 Filed 07/08/24 Page 2 of 2 PageID #: 22511
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`Section 1498 and the Statement, or whether it extended to all communications with the U.S.
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`Government regarding the vaccine or the present case.
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`WHEREFORE, it is hereby CLARIFIED that the June 20, 2024 Order determined only that
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`there is no common interest as to communications with the U.S. Government regarding Section 1498
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`and the Government’s Statement of Interest.
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`BY THE COURT:
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`
` /s/ Mitchell S. Goldberg
`MITCHELL S. GOLDBERG, J.
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`2
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